On
July 27, United States District Judge John L. Kane granted a motion
for preliminary injunction prohibiting the United States government
from requiring Colorado corporation Hercules Industries, Inc. to provide
through its self-insurance program full coverage for FDA-approved contraceptive
methods, sterilization procedures, and patient education and counseling
for women with reproductive capacity.

Effective
August 1, 2012, every insurer, including faith-based institutions and
faith-affiliated employers, is required to include full coverage in
insurance plans for contraceptive services. Following receipt of a severe
rebuke from religious leaders, the Obama Administration agreed to withhold
for one year (but not eliminate) the compliance requirement for objecting
universities, hospitals, and social service groups. In recent congressional
testimony concerning the contraceptive coverage mandate, Health and
Human Services Secretary Kathleen Sebelius stated: “All new insurance
plans will be required to cover additional services and tests for women,
with no out-of-pocket costs, including domestic violence screenings,
FDA-approved contraception, breast feeding counseling and supplies,
and a well woman visit, where she can sit down and talk with her health
care provider.”

Catholics
and many other Christian denominations oppose contraception and abortion.
For them, the Obamacare mandate forces payment for services that violate
fundamental tenets of their religions. That, of course, is obvious to
any familiar with the bill, which mandates contraception and abortifacent
drug coverage in 42 USC 300gg-13(a)(4) and imposes penalties for non-compliance
in 26 USC 4980D; 4980H and in 29 USC 1132. Consequently, the President’s
refusal to grant a blanket exemption if grounded on religious reasons
reveals that he values compliance with a one-size fits all government
insurance mandate more than he does respect for religious liberty protected
by the First Amendment to the Constitution.

The
fact that President Obama values social engineering through law more
than adherence to constitutional barriers against abridgement of religious
liberty comes as no surprise to astute observers, because his entire
philosophy of government, which favors regulatory compulsion to dictate
the direction of all matters of actual or potential import in society,
subverts the very purpose of the Constitution in addition to its specific
provisions to the contrary. In short, to Obama the Constitution is an
occasionally inconvenient piece of parchment. In his view, the Constitution
is not a Supreme Law that binds; it is a quaint relic of a bygone era
that from time to time must be rationalized away. Obama’s supreme
law is Obama’s will. In other words, Obama views himself as the
law. He views himself as the nation. He views his will as the will
of the American people. He is in those respects indistinguishable
from the fascist dictators of the 1930’s who likewise viewed themselves
as the embodiment of all law, of the entire nation, and of all people
in the nation. To concisely and accurately summarize: Obama views himself
as a dictator and his dictates are the law of the land, the Constitution
notwithstanding.

But
in steps Judge Kane in Newland v. Sebelius before the United States
District Court for the District of Colorado. In Newland, Obamacare’s
mandate that group health plans cover contraceptive services provoked
Hercules Industries, Inc. to sue the government. Hercules Industries
makes and sells HVAC products and equipment. Hercules’ board of
directors consists of four Catholics: William, Paul, and James Newland
and Christine Ketterhagen. The board conducts Hercules’ business
affairs consistent with the board members’ religious beliefs,
one tenet of which is to reject contraception. Hercules has a self-insurance
group plan for its employees and that plan expressly excludes abortifacent
drugs, contraception, and sterilization, the very things Obamacare requires
be covered.

To
comply with the law, Hercules’ board members had to violate their
religious beliefs or pay a penalty to the federal government (Justice
Roberts would call that a tax) to exercise those beliefs. Not willing
to violate Catholic doctrine or become a law violator for practicing
that doctrine, Hercules’ board sued arguing that the mandate violated
Hercules’ board members’ free exercise of religion under
the First Amendment. Although Judge Kane recognized that the case presented
novel questions, not least of which was whether a corporation is protected
by the free exercise clause (consistent with precedent, it should be
as the Supreme Court has often held corporations to have First Amendment
rights), he found a substantial likelihood of success on the merits,
supporting issuance of an injunction. He thereby protected Hercules
from having to provide coverage for contraceptive services against the
religious tenets of its board of directors and against the stated religious
premise for excluding such coverage in the Hercules’ self-insurance
group plan.

This
suit, like the suit pending by U.S. Citizens Association against Sebelius
in the Sixth Circuit, reveals that the massive command that all uninsured
Americans (regardless of their predilections to the contrary) buy federally
qualified health insurance entails not only an extension of power beyond
the regulatory limits of Congress in Article I but also a violation
of rights to religious freedom, liberty, freedom of association, and
privacy protected by the Bill of Rights.

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The
painful Supreme Court decision upholding Obamacare on the basis of the
tax clause has rendered the Constitution internally inconsistent and
a threat to individual liberty. In short, even if Congress lacks regulatory
power under Article I to enact a law that compels Americans to expend
their after tax dollars to purchase a private good, the Supreme Court
has held the tax clause to be a never ending regulatory power expander.
So long as a law includes a financial penalty collectible by the IRS,
then it may intrude into our lives beyond the limits of all other enumerated
powers in Article I, because the penalty is a tax and the tax power
is all-consuming. The only question remaining is whether this power
to tax which trumps Article I also trumps the Bill of Rights. The federal
courts’ response to Newland and to U.S. Citizens Association suits
will provide that answer. On that answer hinges the last best hope for
retaining some constitutional limit on the expansion of federal power.

Jonathan
W. Emord is an attorney who practices constitutional and administrative
law before the federal courts and agencies. Congressman Ron Paul calls
Jonathan “a hero of the health freedom revolution” and says
“all freedom-loving Americans are in [his] debt . . . for his courtroom
[victories] on behalf of health freedom.” He has defeated the FDA
in federal court a remarkable eight times, six on First Amendment
grounds, and is the author of Amazon bestsellers The
Rise of Tyranny, Global
Censorship of Health Information,
and Restore
the Republic. He is also the American Justice columnist for
U.S.A. Today Magazine. For more info visit Emord.com.